Legal question about separating families.

[kag]

I need help with this.

I'm not a lawyer, but my ears perked up when I heard something on Rachel tonight. She was reading the transcript from Manafort being sent to prison, and she read something that the judge said--that conditions of bail cannot be used as punitive measures--that I had never heard before, and hadn't really considered. The point is that since he hasn't yet been found guilty of anything, he cannot legally be "punished" by the court.

Now, these kids are being separated from their parents, and the justification the government has given is that the parents are being incarcerated pending trial for breaking the law (assuming they don't/can't post bail), and the government is just taking the kids to "care" for them since their parents now "can't." However, according to public statements by Sessions, the policy was put in place to try to stop people from coming to the border, which is to say, they are instituting punitive measures as a deterrent. But if it's punitive, shouldn't it be illegal to use it as a condition of the bail/jail process since they haven't yet been found guilty of anything?

I understand that government lawyers have said that the kids are just being taken because the parents are incarcerated pending trial, just like any good-old-fashioned American court does every day . But Sessions said in a public speech "if you don't want your kids taken away, then don't try to enter illegally" or something to that effect. Doesn't that take away the government's stated position that these separations aren't meant to be punitive?

I'm sure there are legal issues that I'm missing, and of course there is the simple fact that this policy is immoral and down right cruel, but it seems to me that there is a LEGAL issue here that isn't being argued, and should be.

Any lawyers out there want to tell me what I'm missing?

[duforsure]

1. They're committing child abuse towards these kids

To hurt them and their parents intentionally . Intentionally losing them in the system so they can't find them , or prevent them from talking to them, and now starting to put up tents around El Paso to put them into in triple digit heat is another form of child abuse from trump and the GOP. They used their policy, announcing it several times before they started this, then trump lies again saying it was Democrats responsible for this. He's so big a coward he won't even claim it , its so bad. This was designed to intentionally damage these kids and their parents, and his brutality and other policies designed to hurt them , DACA kids , and cuts to kids food programs shows their intent IS to hurt kids, and add to that cutting health care to kids also. This has been going on against kids from the GOP and trump already for awhile.

[Demsrule86]

2. There should be no trial for asylum seekers and there is no legal issue despite the fact

the murderous Republicans want us to believe it is so. These people are asking for asylum. They have broken no law. These are not 'ordinary' prosecutions...and I must say surprised you defend this policy...this is basically the same thing Trump and Sessions said to justify it...I won't ever justify this...when kids die and they will, I won't have excused this brutal policy. These kids are being incarcerated. It is a brutal horrifying policy and no one should defend it. One important difference is this is a punishment/deterrent policy...not the case with 'Americans'. Also, why would we put these folks in private jails for years where we have to pay the tab. I am sure Trump has friends in the for profit jail system...a thug like him would.

[bornfree17]

3. interesting

I never thought about anyone making a profit on this, but you are right. Somewhere someone is making money.

[Demsrule86]

4. The non-profit CEO and CFO who are abusing and likely will kill children in our name

together makes more than a million dollars.And the 'prisons' are private prisons..follow the money.

[Lee-Lee]

5. There is a difference between punitive and deterrent

This can apply to any law and how it’s enforced.

The reason laws are enforced is twofold. First to punish those who violate them, but second to serve as a motivation for the society at large to come into voluntary compliance so that the laws don’t need to be enforced as much.

Take speed limits for example. The goal of a police department going out and writing tickets for speeding isn’t to punish people or try and collect fines (other than that small percentage of agencies that have lost their way and see it as $$&). The goal of doing it is to encourage people to stay within the safe speed limit. That is why thing like signs warning speed limits are enforced, empty pttaol cars parked in areas to look like they are running radar, etc are all tools also used. Those all also encourage people to stay within the posted speed limit.

Choosing to be more aggressive on enforcement of the law to increase the deterrence effect of those isn’t punitive in nature. For example let’s say a city policy was to only give people warnings for speeding, and as a result there was a huge increase in speeding. If the city adapted a “no warning, everyone gets a ticket” policy that’s still legal.

The situation down these is somewhat similar. Previously policy had been to only handle those crossing the border illegally with children as civil matter. Sessions and Trump decided everyone would face criminal charges. As a result they are arrested.

Their goal is the same as a police department going to a no wantings policy on speeders because too many people are speeding- to discourage the breaking of that particular law.

Since it’s enforcing the laws as written, just not using discretion and going with civil charges, they can’t consider the act of an arrest as punitive. No more than you couldn’t say a person who was arrested for DUI and had their kids placed in foster care was being punished by the separation.

It’s a heavy handed use of existing law, but you won’t gey any wagers arguing it’s punitive if it’s a seperation caused by an arrest for a violation of the law.

[kag]

7. Thanks, Lee-Lee

This helps a lot.

[Igel]

6. Consider this as a kind of flow chart.

You and your 3-year-old daughter cross the border illegally.

You're both caught.

When you're caught, you have a choice. You can agree to be deported or you can apply for asylum and fight the deportation.

If you're deported, you and your daughter stay together while you're awaiting deportation. Many families do precisely this.

If you fight for asylum, the government has a choice. They can release you or they can detain you and your daughter. It's explained that this fight for asylum will almost certainly take longer than they can stay together in detention.

If you are released, then there's an unquantified chance you won't show up for your hearing. I say it's unquantified because I haven't seen numbers for this particular situation--all the numbers refer to the percentage of people who show up for hearings, but that includes people in a lot of different circumstances, including those who are far along in the process and who are showing up for hearings for other matters--in other words, it includes those who are invested in the system as well as those whose best interests are served by avoiding the system.

If you are detained, you and your daughter stay together for a few weeks. But a court case from a number of years ago said that families could be held in adult conditions for only so many days. The lawsuit was brought to force the government to release the families on their own recognizance--the choice presented was detain under harsh conditions or release the families with the kids; in other words, it weaponized the kids. The courts ruled otherwise: It said that if there were no family detention units, the kids must be housed under better conditions separately. The lawsuit made things worse.

Under Obama, the executive asked for more funding for family detention. They got not funding. It was bipartisan, that turning down of funding. Neither side wanted to allow families to be detained, each for their own cynical reasons. Some wanted to continue to weaponize the kids, and compelled Obama to release the families with the mantra "think of the children". Some wanted to fight the budget issue. Some probably wanted to continue to adversely affect families--but that's a reach, because the families weren't adversely affected as a result and I don't think Congressfolk in 2013 were thinking about immigration policy in 2018.

At any point the adults can decide to drop their asylum appeal and have their family be reunited prior to deportation, but many parents value immigration over being kept with their kids (that's a clear valid inference). At any point Congress can vote to construct more family detention units, but no Congressperson I've heard of has so much as whispered this, so I assume neither (D) nor (R) see a political point to be won over this--both find the status quo too politically useful. At any point Trump could decide to release instead of detain, and his is the only choice we see because Trump. But three options are legal; any of the three options could go in a completely moral way to keep families united.

[kag]

8. Thanks, Igel.

Last edited Sun Jun 17, 2018, 03:48 AM - Edit history (1)

Between you and Lee-Lee I think my question has been answered.

Of course, the policy is still completely immoral and fucking cruel, but at least I understand the law better now.